The response from progressives was, as Froomkin points out, utter dismay, for Lee is not only a Tea Party favorite, but also harbors some radical beliefs on the parameters of the Constitution. Shortly after winning his Senate seat last year, Lee (pictured) said the Constitution allows for the shuttering of the Departments of Education and Housing and Urban Development, and during his campaign claimed the Constitution does not give the government much power to “redistribute our wealth,” apparently overlooking Congress's power to tax and spend. He also, as noted here by Jeffrey Rosen, called for the repeal of the 16th Amendment, which authorizes a progressive income tax, and the 17th Amendment, which allows senators to be elected by popular vote rather than anointed by state legislatures. (Froomkin notes that is not clear whether Barlow shares all of Lee's "legal theories.")

But Froomkin says one possible reason for Barlow’s selection “is that Obama’s leeway when it comes to successfully nominating U.S. attorneys and federal judges is severely limited by intransigent Republicans – and by Senate Judiciary Committee Chairman Pat Leahy (D-Vt.). The Vermont senator has insisted that either senator from a nominee’s home state can block the nomination simply by refusing to signal support.”

“The end result,” Froomkin continues, “is that Obama, in many cases, is working off a list of candidates drawn up and considered acceptable by Republicans, rather than the other way around.”

ACS Executive Director Caroline Fredrickson told Froomkin, “It’s impossible for President Obama to nominate somebody who doesn’t have the support of the home-state senators because they won’ have the ability to move through the process,” noting that some Senate delegations “are extremely ideological and don’t consent to the idea that elections matter and that the president should have a prerogative in filling these positions.”

Froomkin points out that this process likely could have been avoided had “Leahy followed the lead of his Republican predecessor – none other than Hatch – and treated home-state senators’ objections as merely advisory.”

A Leahy spokeswoman defended the senator’s method saying he believed it “encourages consultation between the [White House] and home-state senators.”